[Federal Register Volume 63, Number 165 (Wednesday, August 26, 1998)]
[Rules and Regulations]
[Pages 45402-45404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22792]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region II Docket No. NJ30-184; FRL-6151-4]


Approval and Promulgation of Implementation Plans; New Jersey; 
Motor Vehicle Inspection and Maintenance Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a State 
Implementation Plan (SIP) revision submitted by the State of New Jersey 
changing the inspection frequency of the current inspection and 
maintenance (I/M) program from annual to biennial and adding a gas cap 
inspection.

DATES: This approval becomes effective on September 25, 1998.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the 
following locations: Environmental Protection Agency, Region II Office, 
Air Programs Branch, 290 Broadway, 25th Floor, New York, New York 
10007-1866 and New Jersey Department of Environmental Protection, East 
State Street, Trenton, New Jersey 08625.

FOR FURTHER INFORMATION CONTACT: Richard Graciano, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, (212) 637-4249. GRACIANO.RICHARD @EPAMAIL.EPA.GOV.

SUPPLEMENTARY INFORMATION:

I. Background

    On February 26, 1998 New Jersey submitted a proposed revision to 
its State Implementation Plan (SIP) changing the inspection frequency, 
from annual to biennial, of its existing basic automobile inspection 
and maintenance (I/M) program during the transition period to a 
biennial enhanced I/M program. On June 5, 1998, the State submitted the 
final SIP revision providing analysis that quantifies the emission 
reduction loss as a result of switching to biennial testing, as well as 
the net benefit resulting from the addition of the gas cap test. 
Switching to biennial testing during the transition period will allow 
the State to accommodate decreased availability at the test-only 
stations while they are being retrofitted to conduct the new enhanced 
test.
    New Jersey has had a basic I/M program in place since 1974. This 
program, in its current form, was subject to its most recent amendment 
on January 21, 1985, which was approved by EPA and incorporated into 
the SIP on September 17, 1992 (57 FR 42893). EPA conditionally approved 
New Jersey's enhanced I/M program on May 14, 1997 (62 FR 26405). On 
January 30, 1998, the State submitted performance standard modeling to 
EPA, fulfilling the remaining condition required by EPA in its approval 
notice.
    Under provisions of sections 182, 184, and 187 of the Clean Air Act 
(Act), New Jersey is required to implement an enhanced I/M program 
throughout the entire State. In its July 10, 1995 and March 27, 1996 
SIP submittals, the State indicated that the enhanced I/M program would 
require biennial inspections, and suggested that early implementation 
of biennial testing may be necessary to facilitate system upgrades.
    Pursuant to section 193 of the Act, such a change could not be 
approved if it results in increased emissions of volatile organic 
compounds (VOCs) and/or carbon monoxide (CO), which could be the case 
if biennial testing is implemented under the current I/M program 
without other offsets. In order to offset the increased VOC emissions 
that could occur by going biennial, New Jersey is adding a test that 
checks the functional operation of vehicle gas caps. The gas cap checks 
will be implemented during the transition period from the existing 
program to the enhanced program rather than at the start of the 
enhanced program. New Jersey expects that this strategy will offset the 
increase in VOCs resulting from the conversion to biennial testing and 
has submitted modeling results that support this. New Jersey estimates 
that the resulting VOC emissions increase from changing the program 
frequency to biennial will be about 0.026 grams per mile. The VOC 
emissions reduction associated with the functional gas cap test are 
estimated to be about 0.033 grams per mile, resulting in a net benefit 
of 0.007 grams per mile.
    New Jersey also estimates that CO emissions will increase about 
0.365 grams per mile as a result of the change in inspection frequency. 
EPA acknowledges that the most efficient means to achieve significant 
carbon monoxide reduction and ultimate attainment is through the speedy 
implementation of the State's enhanced I/M program. Specifically, EPA 
expects that the State's enhanced I/M implementation will result in 
excess carbon monoxide benefits beyond the required performance 
standard. These are approximately 0.526 grams per mile.
    These air quality benefits cannot be achieved without accommodating 
the practical obstacles associated with retrofitting test-only 
stations, which include transitional biennial testing.
    Since the State was proceeding with a construction and operation 
contract process for its approved enhanced program (and recently 
awarded this contract), at New Jersey's request, EPA agreed to proceed 
with an expedited decision process for this revision to the existing 
program. As a result, approval of this revision was proposed on May 13, 
1998, under a procedure called parallel processing, whereby EPA can 
propose rulemaking action concurrently with the State's procedures for 
amending its regulations (63 FR 26562). If the State's proposed 
revision had substantially changed, EPA would have been obligated to 
evaluate those changes and publish another notice of proposed 
rulemaking. This final rulemaking action by EPA is taking place because 
New Jersey's SIP revision has been adopted, as proposed, by the State 
and submitted formally to EPA for incorporation into the SIP.

[[Page 45403]]

II. Public Comments/Response to Comments

    This section discusses the content of the comments submitted to the 
docket during the federal comment period for the notice of proposed 
rulemaking, published in the May 13, 1998 Federal Register, and 
provides EPA's responses to those comments. Comments were received from 
the State of New York only. Copies of the original comment letter is 
available at EPA's Region II office at the address listed in the 
ADDRESSES section of this document.

Comment--Noncomplying Schedule

    The New York State Department of Environmental Conservation 
(NYSDEC) commented that the New Jersey proposal does not comply with 
EPA's interim Final Rule because the enhanced I/M program did not start 
on November 15, 1997 or by February 1, 1998, and as a result New Jersey 
will not comply with the 18-month NHSDA short term evaluation clock 
that expires on December 14, 1998. NYSDEC also commented that EPA has 
not converted the proposed approval to a disapproval, and that New 
Jersey cannot be allowed to claim any emission reduction credits toward 
the 15 Percent or Rate of Progress Plans if the program begins on 
January 1, 2000.
    Response to Comment: EPA maintains that today's action is wholly 
consistent with EPA's interim Final Rule. While EPA agrees that New 
Jersey cannot be allowed to claim any emission reduction credits toward 
the 15 Percent Plans if the program begins on January 1, 2000, it does 
not agree that this emission credit shortfall warrants a disapproval of 
the underlying enhanced I/M program.
    By letter dated December 12, 1997, EPA informed New Jersey of its 
decisions to disapprove the State's 15 Percent Plan pursuant to section 
110(k) of the Act, which triggered its own sanctions and the FIP clock, 
and to begin sanctions for New Jersey's failure to implement its 
enhanced I/M program, in accordance with section 179(a)(4) of the Act. 
The enhanced I/M SIP approval was a separate action and the delayed 
start date has different consequences for the 15 Percent Plan than for 
the enhanced I/M SIP.
    Specifically, the New Jersey enhanced I/M program remains an 
approved part of the applicable implementation plan for New Jersey 
because it meets all of the federal regulatory requirements. The start 
date was significant for purposes of taking credit for reductions under 
the NHSDA. Furthermore, unless New Jersey begins implementation of its 
enhanced I/M program, starting 18 months from December 12, 1997, 
increased emissions from new or modified sources of VOCs and nitrogen 
oxides must be offset at a rate of two tons of reduction for every one 
ton of increased emissions. Starting six months thereafter, 
restrictions of New Jersey's receipt of federal highway funds will also 
begin. NYSDEC should also note that the 15 Percent Plan was converted 
to a disapproval because the 15 Percent Plan was not viable without the 
reductions from the enhanced I/M program that New Jersey had projected 
based upon the February 1998 start date. At present, New Jersey must 
submit a revised 15 Percent Plan which does not rely upon its enhanced 
I/M program to achieve the necessary emission reductions.

Comment--Inadequate Mobile Modeling

    NYSDEC made several comments on New Jersey's modeling analysis 
suggesting it was inadequate because the State claims credits from use 
of final cutpoints at the start of the enhanced program. In addition, 
NYSDEC commented that New Jersey's assumption of inspections at change 
of ownership is not justified, that New Jersey's did not adequately 
support the claim of 100 percent credit for the technician training and 
certification program, and that the State failed to use locally 
specific inputs.
    Response to Comment:  This rulemaking action is limited to New 
Jersey's request to change the testing frequency of the existing basic 
program. NYSDEC's comments refer to New Jersey's performance standard 
modeling analysis for the enhanced I/M program and are therefore beyond 
the scope of this document. However, EPA will take these comments into 
consideration when evaluating New Jersey's final program submittal to 
take place once the enhanced program has begun.

III. Conclusion

    New Jersey's June 5, 1998 submittal of the SIP revision request 
contained no changes from the proposed revision submitted on February 
26, 1998, and there were no comments that would impact on this 
decision. As a result, EPA is moving forward with this approval. Had 
the State's submittal contained substantial changes, EPA would have 
evaluated them to determine their effect on the overall submittal and 
published another notice of proposed rulemaking.
    With respect to this approval, EPA reiterates the requirement that 
testing frequency conversion under the terms of the SIP only applies 
after the State awards the necessary construction contracts for its 
enhanced I/M program.

IV. Administrative Requirements

A. Executive Order 12866 and 13045

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from review under Executive Order (E.O.) 12866 
entitled, Regulatory Planning and Review. The proposed rule is not 
subject to E.O. 13045 entitled, Protection of Children from 
Environmental Health Risks and Safety Risks, because it is not an 
``economically significant'' action under E.O. 12866.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. This final rule will not have a significant impact on a 
substantial number of small entities because SIP approvals under 
section 110 and subchapter I, part D of the Clean Air Act do not create 
any new requirements but simply approve requirements that the State is 
already imposing. Therefore, because the Federal SIP approval does not 
create any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
Moreover, due to the nature of the Federal-State relationship under the 
Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

C. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to State, local, or tribal governments in the aggregate; 
or to private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and

[[Page 45404]]

is consistent with statutory requirements. Section 203 requires EPA to 
establish a plan for informing and advising any small governments that 
may be significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a federal mandate that may result in estimated annual costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This federal action approves 
pre-existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

D. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
major rule as defined by 5 U.S.C. 804(2).

E. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by October 26, 1998. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Intergovernmental relations, Ozone, Volatile organic 
compounds.

    Dated: August 14, 1998.
William J. Muszynski,
Acting Regional Administrator, Region 2.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart FF--New Jersey

    2. Section 52.1582 is amended by adding new paragraph (f) to read 
as follows:


52.1582  Control strategy and regulations: Ozone (volatile organic 
substances) and carbon monoxide.

* * * * *
    (f) The State of New Jersey's June 5, 1998 submittal for the 
conversion of the inspection frequency of the current inspection and 
maintenance (I/M) program from annual to biennial in order to 
facilitate the upgrade of the existing state lanes to accommodate the 
testing equipment for the enhanced program has been approved by EPA. 
The State will be adding a gas cap inspection to the current I/M 
program, which will result in a net increase in overall emissions 
reductions.

[FR Doc. 98-22792 Filed 8-25-98; 8:45 am]
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